Justice Kennedy’s “Historical Defense” Heller and the 2nd Amendment

During his remarks at the 9th Circuit Judicial Conference, Justice Kennedy apparently spoke about D.C. v. Heller, for which he provided the key 5th Vote. Correct me if I’m wrong, but I can’t recall him ever speaking about the 2nd Amendment before. Anyway, here is a writeup by Bob Egelko:

He then proceeded to a brief, historical defense of Scalia’s 2008 ruling that overturned a ban on handguns in Washington, D.C., and declared that the Second Amendment protects an individual’s right to possess at least certain firearms at home.

The Second Amendment, ratified along with the rest of the Bill of Rights in 1791, had been interpreted by the court as late as 1939 to protect only the right to bear arms in a “well-regulated militia.” But Kennedy observed that constitutional understanding can change over time — for example, the 1896 ruling in Plessy vs. Ferguson, which upheld segregation in public transportation as “separate but equal,” wasn’t overturned by the court until the 1954 Brown vs. Board of Education decision, which outlawed school segregation and mandated equal treatment of the races under the Fourteenth Amendment.

By the same token, he said, some critics have claimed that the decades, or the centuries, it took the court to declare an individual right to keep and bear arms “means that it doesn’t exist.”

“I’m not so sure,” said Kennedy, who was part of Scalia’s 5-4 majority in the 2008 ruling.